The DIS and the 2018 Arbitration Rules
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1 The DIS and the 2018 Arbitration Rules AHK / DIS: Arbitration in Russia and Germany St. Petersburg, 19 April 2018 James Menz, J.D. Deputy Secretary General & Head of Case Management
2 The German Arbitration Institute Berlin Members (Germany & Int l) Companies Leading German institution for promoting domestic and international arbitration and ADR Practitioners Köln Experts
3 Statistics 250 cases pending 180 New Arbitrations and ADR Proceedings Amounts in dispute from to 270 M; aggregate ~ 1 B. ~65% of cases are domestic, ~35% international
4 Ambition Update after 20 years One set of rules for domestic and international arbitrations Two equally authoritative languages Modern, innovative, but do not follow every fashion Emphasize German/civil law elements and make them attractive Broad-based reform effort 3 committees 300+ individuals Private practitioners, in-house counsel, academics Hundreds of pages of proposals/suggestions Civil and common law drafting groups
5 The DIS Arbitration Council New body in addition to Appointing Committee Shift of certain administrative powers from tribunal to DIS Enhances integrity and predictability Leading German and international arbitration practitioners Main powers Challenges and removal of arbitrators (Arts & 16.2) Fixing the arbitrator fees after early termination (Art. 34.4) Deciding disputes over the amount in dispute (Art. 36.3) Deciding on increases (due to complexity, Schedule 2) and decreases (due to delayed award, Art. 37) of arbitrator fees
6 More speed at the front-end and the back-end Shorter deadlines for nomination (30 21 days) (Arts. 7.1 & 12.2) New deadline for Answer (45 days) and (hortatory) counterclaim (Arts. 7.2 & 7.5) Softening of default rule for number of arbitrators (Art. 10.2) 3-month deadline for final award (Art. 37) Quick scrutiny-light (Art. 39.3)
7 Efficiency and proactive case management Efficiency as the lode-star (Art. 27.1) Tribunal may take into account in costs decisions (Art. 33.3) DIS may take into account in setting arbitrator fees (Art. 37.4) Article 27 as a toolbox Case Management Conference (21 days) Mandatory agenda Must discuss: Annex 3-measures (tribunal can order absent party agreement), expedited proceedings, ADR, use of experts In-house counsel to attend (user buy-in) All-electronic communication (Art. 4.1)
8 Solutions for a complex world Multi-party, multi-contract, joinder, and consolidation provisions Conservative approach No overriding efficiency considerations Consent-based No institutional prima facie decisions (one wrinkle, multiple arbitration agreements, Article 17.3) If no explicit agreement, the arbitral tribunal reviews the existence and the scope of any consent More flexible solution for failure to appoint an arbitrator by one side in multi-party arbitrations (Art. 20.3)
9 Civil law elements: early dispute resolution Dispute management (Art. 2.2) Help the parties find the dispute resolution mechanism best suited for their dispute Before or during arbitration Discussing mediation and ADR early on (Art. 27.4) Provisional assessments as one of the Annex 3-measures Encouraging amicable settlements at every stage of the case (Art. 26) Turning a mediated settlement or other ADR-agreement or decision into a consent award (Art. 41.2) If one party does not want any of this, it will not be imposed!
10 What doesn t change? What was not done? Emergency Arbitrator (but stay tuned) AID-based expedited proceedings Summary judgment Formalized Arb-Med-Arb (but see dispute management) What does not change? Arbitrator fees remain low and internationally very competitive (lower third tier), fees were reduced even further for amounts in dispute <100,000 Light-touch, non-bureaucratic administration
11 Thank you for your attention! James Menz, J.D. DIS DEPUTY SECRETARY GENERAL / HEAD OF CASE MANAGEMENT D German Arbitration Institute Lennéstr. 9 D Berlin T F Beethovenstr D Köln T F The DIS recommends the following arbitration clause: "All disputes arising out of or in connection with this contract or its validity shall be finally settled according to the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law."
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